About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

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Friday, September 29, 2006

Beltway Democrats are seriously flawed, but the election is still critically important

(updated below)Now that the torture and detention bill will become law, it is necessary to focus on the political implications of what happened yesterday and, more broadly, what has been done to our country by the Bush administration and the blindly loyal Congress for the last five years. It goes without saying that the conduct of Democrats generally (meaning their collective behavior) was far, far short of anything noble, courageous or principled. And one could, if one were so inclined, spend every day from now until November 7 criticizing the strategic mistakes and lack of principle of Beltway Democrats and still not exhaust the list.

But that's all besides the point at the moment, because -- right now -- everyone has to answer for themselves these questions: (1) do you believe that the incalculable damage imposed on this country by the Bush administration and its followers (including in Congress) can be impeded and then reversed and, if so, (2) how can that be accomplished? For those who have given up and believe the answer to question (1) is "no," then, by definition, there is nothing to discuss. You' ve decided that there is no hope, that you're done fighting and trying to defend any of your beliefs and principles, and you're ready to cede the country to those who are in the process of destroying it.

But for those who believe that the answer to question (1) is "yes" (and I believe that emphatically), then the answer to question (2) seems self-evidently clear. The most important and overriding mandate is to end the one-party rule to which our country has been subjected for the last four years. Achieving that is necessary -- it is an absolute pre-requisite -- to begin to impose some actual limits on the authoritarian behavior and unchecked powers of this administration -- because, right now, there are no such limits.

And, independently, killing off unchallenged Republican rule is the only possible way to invade the wall of secrecy behind which this administration has operated and to find out what our government has actually been doing for the last five years. Shining light on the shadows and dark crevices in which they have been operating is vitally important for repairing the damage that has been done. If nothing else, a Chairman Conyers or a Chairman Leahy, armed with subpoena powers, will accomplish that.

There is no point in trying to glorify the conduct of Democrats. I think the larger-than-expected Senate Democratic opposition to the torture/detention bill is illusory, almost a by-product of sheer luck more than anything else. The large number of votes against the bill seems to have been driven more by Democrats' objections to the significant changes made to the bill in the last several days (ones made even after the Glorious Compromise was announced) than objections to the core provisions of the bill themselves -- and even then, the Democrats' anger was more about the fact that they were excluded from the negotiating process rather than anger towards the substance of the changes themselves.

It seems that this is what accounts for the fact that most of the Democrats did not even unveil their opposition to this bill until the very last day. Many of them were likely prepared to vote for the "compromise" and only decided not to due to the substantive worsening of the bill in the last few days. After all, if they are so gravely offended by the core provisions of torture and indefinite detention, why did Harry Reid, Hillary Clinton, Joe Biden, etc. all refuse even to say how they were going to vote on this bill until yesterday (I suspect many of their votes against the bill were sealed only once the habeas corpus amendment failed yesterday). And until yesterday, most prominent Democrats made themselves invisible in the debate over torture and detention powers. All of those criticisms are accurate and fair enough.

But a desire to see the Democrats take over Congress -- even a strong desire for that outcome and willingness to work for it -- does not have to be, and at least for me is not, driven by a belief that Washington Democrats are commendable or praiseworthy and deserve to be put into power. Instead, a Democratic victory is an instrument -- an indispensable weapon -- in battling the growing excesses and profound abuses and indescribably destructive behavior of the Bush administration and their increasingly authoritarian followers. A Democratic victory does not have to be seen as being anything more than that in order to realize how critically important it is.

A desire for a Democratic victory is, at least for me, about the fact that this country simply cannot endure two more years of a Bush administration which is free to operate with even fewer constraints than before, including the fact that George Bush and Dick Cheney will never face even another midterm election ever again. They will be free to run wild for the next two years with a Congress that is so submissive and blindly loyal that it is genuinely creepy to behold. A desire for a Democratic victory is also about the need to have the systematic lawbreaking and outright criminality in which Bush officials have repeatedly engaged have actual consequences, something that simply will not happen if Republicans continue their stranglehold on all facets of the Government for the next two years.

If a desire to put Democrats in office doesn't inspire you into action - and, honestly, at this point, how could it? -- a desire to block Republicans from exercising more untrammeled power, and to find ways to hold them accountable, ought to do so. Disgust and even hatred are difficult emotions to avoid when reading things like this:

Republicans, especially in the House, plan to use the military commission and wiretapping legislation as a one-two punch against Democrats this fall. The legislative action prompted extraordinarily blunt language from House GOP leaders, foreshadowing a major theme for the campaign.

Speaker J. Dennis Hastert (R-Ill.) issued a written statement on Wednesday declaring [emphasis in original]: "Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of MORE rights for terrorists."

GOP leaders continued such attacks after the wiretapping vote. "For the second time in just two days, House Democrats have voted to protect the rights of terrorists," Hastert said last night, while Boehner lashed out at what he called "the Democrats' irrational opposition to strong national security policies."

My personal list of disagreements with most Democrats on a variety of issues is quite long. But the need to restore the rule of law to our country and to put an immediate end to the unlimited reign of the increasingly sociopathic Bush movement is of unparalleled and urgent importance, and it so vastly outweighs every other consideration that little else is worth even discussing until those objectives are accomplished.

We are a country ruled by a President who has seized the power to break the law in multiple ways while virtually nothing is done about it. Yesterday, we formally vested the power in the President to abduct people and put them in prisons for life without so much as charging them with any crime and by expressly proclaimingthat they have no right to access any court or tribunal to prove their innocence. We have started one war against a country that did not attack us and, in doing so, created havoc and danger -- both to ourselves and the world -- that is truly difficult to quantify. And we are almost certainly going to start one more war just like it (at least), that is far more dangerous still, if the President's Congressional servants maintain their control.

For all their imperfections, cowardly acts, strategically stupid decisions, and inexcusable acquiescence -- and that list is depressingly long -- it is still the case that Democrats voted overwhelmingly against this torture and detention atrocity. The vote total on yesterday's House vote on Heather Wilson's bill to legalize warrantless eavesdropping reflects the same dynamic: "On the final wiretapping vote, 18 Democrats joined 214 Republicans to win passage. Thirteen Republicans, 177 Democrats and one independent voted nay." And, if nothing else, Democrats are resentful and angry at how they have been treated and that alone will fuel some serious and much-needed retribution if they gain control over one or both houses.

By reprehensible contrast, the Republican Party is one that marches in virtually absolute lockstep in support of the President's wishes, particularly in the areas of terrorism and national security. It was a truly nauseating spectacle to watch each and every one of them (other than Chafee) not only vest these extraordinary powers in the President by voting in unison for this bill, but beyond that, blindly oppose every single amendment offered by Democrats -- including ones designed to do nothing other than ensure some minimal Congressional oversight over these extraordinary new presidential powers. It was like watching mindless zombies obediently marching wherever they were told to march. That has been how our country has been ruled for the last five years and, unless there is a Democratic victory, we will have more of that, and worse, over the next two years.

There is one other consideration which, by itself, ought to be determinative. The only branch of government that has shown any residual willingness to defend the Constitution and the rule of law is the judicial branch. But critical Supreme Court decisions such as Hamdan -- which at least affirmed the most minimal and basic constitutional protections -- depend upon the most precarious 5-4 split among the Justices. One of the five pro-Constitution Justices, John Paul Stevens, is 86 years old. If George Bush has free reign to replace Stevens, it will mean that the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power -- Thomas, Scalia, Roberts, Alito and New Justice -- which will control the Court and endorse unlimited executive abuses for decades to come.

In a GOP-controlled Senate, Democrats cannot stop a Supreme Court nominee by filibuster anymore because Republicans will break the rules by declaring the filibuster invalid. The only hope for stopping a full-fledged takeover of the Supreme Court is a Democratic-controlled Senate.

Continued unchallenged Republican control of our government for two more years will wreak untold damage on our country, perhaps debilitating it past the point of no return. There is only one viable, realistic alternative to that scenario: a Democratic takeover in six weeks of one or both houses of Congress. Even that would be far from a magic bullet; the limits imposed by Democrats even when they are in the majority would be incremental and painfully modest. But the reality is that this is the only way available for there to be any limits and checks at all.

In the real world, one has to either choose between two more years of uncontrolled Republican rule, or imposing some balance -- even just logjam -- on our Government with a Democratic victory. Or one can decide that it just doesn't matter either way because one has given up on defending the principles and values of our country. But, for better or worse, those are the only real options available, and wishing there were other options doesn't mean that there are any. And there are only six weeks left to choose the option you think is best and to do what you can to bring it to fruition.

UPDATE: Please see this comment for some clarification about what I mean here and what I do not mean.

And I think there is one other point that needs to be recognized about yesterday's vote: In 2002, virtually all of the Democratic Presidential hopefuls in Congress (Kerry, Edwards, Gephardt, Graham) voted for the Iraq war resolution, because they thought they had to be accommodationist in order to have a chance to win.

But this time, all of the Democratic Presidential hopefuls in Congress (Biden, Clinton, Feingold, Kerry) voted against this bill, because now they know that they can't be accommodationist if they want to win the nomination. Call that the Joe Lieberman Lesson. That is genuine progress, no matter how you slice it. Is it glorious, tearing-down-the-gate-with-fists-in-the-air Immediate Revolution? No. But it's undeniable incremental progress nonetheless.

UPDATE II: Barbara O'Brien agrees with the views in this post and adds some additional arguments with which I agree (and which address many of the comments here), as does The Editors.